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Government Urges SCOTUS to Declare ALJ Process Unconstitutional

Client Alert | 1 min read | 12.08.17

On November 29, 2017, the United States filed a brief in support of certiorari in Raymond J. Lucia Cos., Inc. v. SEC, urging the U.S. Supreme Court to use the case to hold that the existing hiring process for federal administrative law judges (ALJs) is unconstitutional. To date, federal courts of appeals have split on the question: the D.C. Circuit ruled that ALJs are mere “employees” of the federal government and are properly hired through a competitive process overseen by the Office of Personnel Management (OPM); the Tenth and Fifth Circuits, on the other hand, ruled that ALJs are “inferior officers” of the United State and must therefore be appointed as dictated by the Appointments Clause of the U.S. Constitution, as previously discussed here and here. The answer to the question could have significant consequences for thousands of ALJs serving in dozens of federal agencies who are routinely charged with overseeing discovery in agency proceedings, issuing subpoenas, making findings of fact, and deciding cases. The Supreme Court should decide whether to accept the case for argument early next year.

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Client Alert | 2 min read | 09.08.26

IRS Takes Aim: Proposed Rule Threatens Tax-Exempt Status of Private Schools

On September 4, 2026, the IRS published a notice of proposed rulemaking (NPRM) titled “Racial Nondiscrimination in Private Schools” (REG-119986-25). The proposed rule would extend the prohibition against racial discrimination in private schools to policies and practices that are intended to serve “remedial or diversity-related objectives,” such as those commonly associated with diversity, equity, and inclusion (DEI) initiatives. Under the proposed rule, any private primary or secondary school, college, professional or trade school, or university, would lose its tax-exempt status if it adopts, maintains, or enforces any policy or practice that considers race, color, or national or ethnic origin in the administration of any admissions policy, scholarship or loan program, athletic program, or other school-administered program. Comments are due November 3, 2026, and, if finalized, the proposed rule would go into effect on May 31, 2027. ...